National Security as a Ground of Justification
Module 3: Access to the Internet
National security is frequently relied upon as the justification for interference with access to the internet, as well as other interferences with the right to freedom of expression.(1) While this may, in appropriate circumstances, be a legitimate aim, it also has the potential to be used to quell dissent and cover up state abuses.
The covert nature of many national security laws, policies, and decisions, as well as the refusal by states to disclose information about particular national security threats, tends to exacerbate this concern. Furthermore, courts and other institutions have often been deferent to the state in determining what constitutes national security. As has been previously noted:(2)
“The use of an amorphous concept of national security to justify invasive limitations on the enjoyment of human rights is of serious concern. The concept is broadly defined and is thus vulnerable to manipulation by the State as a means of justifying actions that target vulnerable groups such as human rights defenders, journalists or activists. It also acts to warrant often unnecessary secrecy around investigations or law enforcement activities, undermining the principles of transparency and accountability.”
Principle 9(3) of the African Declaration provides that national security, public order, or public health are legitimate aims for a limitation on freedom of expression, but only if it is prescribed by law and necessary and proportionate. This means that it should:
“(a) originate from a pressing and substantial need that is relevant and sufficient;
(b)have a direct and immediate connection to the expression and disclosure of information, and be the least restrictive means of achieving the stated aim; and
(c)be such that the benefit of protecting the stated interest outweighs the harm to the expression and disclosure of information, including with respect to the sanctions authorised.”
Intersection of freedom of expression and national security
In 1995, a group of international experts drew up the Johannesburg Principles on Freedom of Expression and National Security, (3) which were endorsed by the then UNSR on FreeEx.(4) The Johannesburg Principles address the circumstances in which the right to freedom of expression might legitimately be limited on national security grounds, at the same time as underlining the importance of the media, and freedom of expression and information, in ensuring accountability in the realm of national security. In 2013, a group of civil society organisations from across the globe, including some which were involved in the drafting of the Johannesburg Principles, published an updated version known as the Tshwane Principles. As set out in the Tshwane Principles:(5)
- Governments may legitimately withhold information in some narrowly defined areas, such as defence plans, weapons development, and the operations and sources used by intelligence services.
- Information about serious human rights violations may not be classified or withheld.
- Disclosure requirements apply to all public entities, including the security sector and intelligence authorities.
- People who disclose wrongdoing or other information of public interest (whistleblowers and the media) should be protected from any type of retaliation, provided they acted in good faith and followed applicable procedures.
Although not binding, the principles were developed with wide consultation and have received wide consensus from various international and regional bodies.(6) The measures described above can often give rise to a prior restraint on content and consequently have a chilling effect on the enjoyment of the right to freedom of expression.
Counter-terrorism
Similarly, counter-terrorism as a purported justification for network shutdowns or other interferences with access to the internet should also be treated with caution. As noted in General Comment No. 34, the media plays an important role in informing the public about acts of terrorism, and it should be able to perform its legitimate functions and duties without hindrance.(7) While governments may argue that internet shutdowns are necessary to ban the spread of news about terrorist attacks to prevent panic or copycat attacks, it has instead been found that maintaining connectivity may mitigate public safety concerns and help report public order.(8)
At a minimum, if there is to be a limitation of access to the internet, there should be transparency regarding the laws, policies and practices relied upon, clear definitions of terms such as ‘national security’ and ‘terrorism’, and independent and impartial oversight being exercised.